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25 June 2014 0 Comments Posted in Employment, Opinion

Holiday pay should include commission

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A case which has been running through the UK Courts and has now reached the ECJ, Lock v British Gas Trading Limited and others (about which the Advocate General’s Opinion was reported in the December 2013 edition of the Update), has now had judgment delivered by the ECJ. In short, it follows the Advocate General’s Opinion that, where a worker’s pay normally includes commission, and their remuneration has, as an integral part of it, a commission element, the figure used for calculating their holiday pay should be their full remuneration including commission and not reduced to the basic pay element. It found that the worker only received basic pay for taking holidays in circumstances where their normal remuneration included a significant amount of commission. Since they would therefore be significantly worse off if they took holiday, it was likely to deter them from exercising their right to annual leave. It also held that the fact that the reduction occurs after the period of annual leave is irrelevant.

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Being paid is not essential for employment status

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In Secretary of State for Business Innovation and Skills v Knight, the EAT has held that someone can still be an employee for the purposes of employment law even if they have not exercised their rights to be paid remuneration. In this case, the managing director and sole shareholder of a company had elected not to be paid for two years to attempt to keep the company afloat but she nonetheless remained an employee and therefore entitled to redundancy payment from the Insolvency Service under section 166 of the Employment Rights Act.

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No claim against transferee for providing misleading information

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In Allen and others v Morrisons Facilities Services Limited, the EAT has held that transferring employees cannot bring a claim against a transferee for its failure to provide the transferor with sufficient information regarding measures which it envisages taking post transfer unless the employees have a valid claim against the transferor for breach of the transferor’s obligations to inform and consult and the transferor has joined in the transferee to the proceedings as part of its defence to the claim. In this case, the Claimants had already either withdrawn or settled their claims against the transferor so they had no recourse against the transferee.

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Constructive dismissal not caused by age discriminatory comment

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In Clements v Lloyds Banking Plc and others, the EAT has upheld a Tribunal decision that an employee was constructively dismissed when his manager told him he wished to move him from his role and announce a new incumbent into the role. Despite being in his fifties, his manager’s age discriminatory comment “you’re not 25 anymore” was not found to be a substantial part of the repudiatory conduct in response to which the employee resigned.

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Illegality did not preclude discrimination claim

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In Wijesundera v Heathrow 3PL Logistics Limited and another EAT has allowed the appeal of a Claimant against the Tribunal decision that her claims could not be brought due to the illegality of her working status. The EAT held that the allegations of harassment were not inextricably linked to her employment, which was the source of the illegality, because there was nothing to say that being an employee was what led to her being sexually harassed.

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13 June 2014 0 Comments Posted in Employment, Opinion

Repeating restrictive covenant in undertaking

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In Capgemini India Private Limited and another v Krishnan and others, the High Court has refused the employer’s application for an interim injunction where employees had given undertakings to observe a restrictive covenant which they subsequently tried to argue was in restraint of trade and unenforceable. In doing so, the Court considered the two conflicting public policy points: one of which was the effect of a restraint of trade, and the other was that the terms on which a dispute is settled should be respected. It took into account Court of Appeal guidance that the terms of an agreement to settle a dispute could nonetheless be challenged but considered it was not for the party who relied on the agreement to prove it was reasonable but for the party seeking to avoid it to prove the particular grounds that justified it being set aside.

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Musicians in injunction score

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Another case where the facts are probably more engaging than the decision is Ashworth and others v Royal National Theatre.

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Guidance to Tribunals on whistle blowing

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In Blackbay Ventures Limited t/a Chemistree v Gahir, the EAT has provided guidance to Employment Tribunals on dealing with whistle blowing cases. It states that, when dealing with a large number of disclosures, the Tribunal should identify each separate disclosure and the basis upon which it is said to be qualifying and protected. It must also identify each individual breach of a legal obligation where this is the case and should not simply lump together a number of complaints. Furthermore where a worker alleges they have suffered a detriment which is short of dismissal, the Tribunal must identify this detriment and the date on which it occurred, or the date on which there was an alleged failure to act. If there is no date of a deliberate failure to act directly, the failure to act will be deemed to take place when the period within which it might reasonably have been expected to have taken place has expired.

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Removal of dog was discriminatory

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In a case more interesting for its facts than its principle, Commissioner of Police of the Metropolis v Keohane is an EAT decision upholding the Employment Tribunal decision regarding a pregnant police dog handler who was found to have suffered pregnancy and maternity discrimination when one of her narcotic dogs was reallocated when she announced she was pregnant and her request to have the dog returned before the end of her maternity leave was rejected. The EAT held that the Tribunal was entitled to find that the decision making process to remove the dog was because of her pregnancy, although the Tribunal was incorrect to find that the risk to her career at a result of the dog’s removal did not amount to a particular disadvantage for the purposes of an indirect sex discrimination claim. The rationale behind this is that her status as a dual narcotics dog handler enhanced her career prospects and enabled her to earn overtime.

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12 June 2014 0 Comments Posted in Employment, Opinion

“Johnson exclusion” does not preclude constructive dismissal claim

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In Gebremariam v Ethiopian Airlines Enterprise t/a Ethiopian Airlines the EAT has held that what is commonly known as the “Johnson exclusion” (the principle that an employee who is dismissed cannot recover damages at common law for the way in which the dismissal took place) did not prevent an employee selected for redundancy, notice for which was then withdrawn, from relying on a flawed redundancy selection process as a fundamental breach of contract which entitled her to resign and bring a constructive unfair dismissal claim.

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29 April 2014 0 Comments Posted in Employment, Opinion

Surrogate mothers not protected by EU law

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In two cases before the ECJ, CD v ST and another case, the ECJ has held that there was no breach of EU law to deny to mothers who had children by a surrogate, maternity or adoption leave and pay. They had not been pregnant so they were not entitled to maternity leave, and since a man who had organised a surrogacy would be treated the same, there was no sex discrimination.

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Dismissal for post-natal depression was not discriminatory

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In Lyons v DWP Job Centre Plus, the EAT upheld a Tribunal decision that a woman who was dismissed for having being off sick for post-natal depression for several months following the end of her maternity leave was not discriminated against either because of pregnancy or sex. She was outside the protected period of pregnancy and maternity leave, and in consideration of the ECJ decision in Brown v Rentokil Limited it was not necessarily discriminatory because of sex where a woman is dismissed for a pregnancy related absence where her maternity leave has ended. Sex discrimination in such circumstances will only occur if the employer treats her less favourably than it would have treated a sick man in similar circumstances. A surprising decision but an interesting one nonetheless.

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